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Motorola, Inc. v. Abeckaser

January 29, 2010

MOTOROLA, INC., PLAINTIFF ,
v.
GAD ABECKASER A/K/A GADI ABECKASER, GADI'S CELL, INC. D/B/A GADICELL, INC. AND GADICELL, GADIS INC., MOBILE CELLULAR, INC., AND VARIOUS JOHN DOES, JANE DOES AND ABC COMPANIES, DEFENDANTS .



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Plaintiff Motorola, Inc. commenced this trademark action on September 21, 2007 against defendants Gad Abeckaser a/k/a Gadi Abeckaser ("Abeckaser"); Gadi's Cell, Inc. d/b/a Gadicell, Inc. and Gadicell; Gadis Inc.; Mobile Cellular, Inc.; and various John Does, Jane Does and ABC Companies. Plaintiff alleges that defendants engaged in: (1) infringement of plaintiff's registered trademarks, in violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114 (Count I); (2) false designation of origin, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (Count II); and (3) unfair competition under New York State common law (Count III). Plaintiff's claims arise out of defendants' sale of counterfeit merchandise bearing trademarks that are unauthorized copies of plaintiff's trademarks.

On April 8, 2009, the Honorable Charles P. Sifton granted plaintiff's motion for partial summary judgment on Counts I and II, and on August 20, 2009, judgment was entered in plaintiff's favor. The case was transferred to me on December 1, 2009.

Presently before the court is plaintiff's motion (1) to set aside a conveyance of property by defendant Abeckaser pursuant to N.Y. Debt. & Cred. Law § 270, et seq. ; and (2) for leave to add the transferee and current title holder of the property as a necessary party, instanter . For the reasons set forth below, plaintiff's motion to set aside the conveyance of property is denied with leave to seek relief after adding the transferee and current title holder of the Property as a necessary party, and plaintiff's motion for leave to add transferee and current title holder as a necessary party is granted.

BACKGROUND

Familiarity with the facts and procedural history of the case is presumed. For a more complete description of the underlying facts, see Motorola, Inc. v. Abeckaser , No. 07-CV-3963, 2009 WL 962809 (E.D.N.Y. Apr. 8, 2009) . The following facts are drawn from the record of the case, including plaintiff's submission in connection with this motion. Defendants have not submitted papers in opposition to the present motion.

Plaintiff commenced the instant action on September 21, 2007, and immediately sought an ex parte temporary restraining order and preliminary injunction restraining defendants' assets. Declaration of Eddy Salcedo dated September 11, 2009 ("Salcedo Decl.") ¶ 4. By stipulation dated October 3, 2007, plaintiff withdrew its initial motion and defendants agreed to refrain from using the Motorola Trademarks in connection with any counterfeit merchandise. Defendants also agreed as follows:

4. During the pendency of this action, Defendant Abeckaser agrees not to sell, lease, transfer or otherwise dispose of or encumber his home, including the structure and land, known as and located at 1082 East 29th Street, Brooklyn, New York, without prior approval of the Court.

5. Defendants agree not to transfer or dispose of money, stocks or other assets outside of the regular course of business without prior approval of the Court, or to, in any way, secrete any money, stocks or other assets.

Salcedo Decl. ¶ 4 & Ex. B (copy of stipulation) at ¶¶ 4-5. Although the stipulation was filed on October 3, 2007 ( see docket entry 5), neither I nor any other judge "so ordered" the stipulation.

In January of 2009, defendants were directed to report whether the title to the property located at 1082 East 29th Street, Brooklyn, New York, designated in paragraph four of the stipulation ("the Property"), remained in defendant Abeckaser's name, whether it remained free of lease, transfer or other encumbrance, and whether defendants had complied with paragraph five of the stipulation. Plaintiff's counsel reported that a search of the online database for the Office of the City Register of the New York City Department of Finance revealed that a deed had been issued for the property designated in paragraph four of the stipulation to an individual by the name of "Simon Stoklasa" in or about October 2008. Salcedo Decl. ¶ 5 & Ex. C (copy of deed).*fn1

In late January of 2009, Plaintiff moved for partial summary judgment on Counts I and II pursuant to Rule 56 of the Federal Rules of Civil Procedure, as well as for injunctive relief, damages, attorney's fees, and costs. Judge Sifton granted plaintiff's motion for partial summary judgment on April 8, 2009. Motorola, Inc. v. Abeckaser , No. 07-CV-3963 (CPS)(SMG), 2009 WL 962809 (E.D.N.Y. 2009).

On April 29, 2009, upon plaintiff's application, Judge Sifton issued an order directing defendants to show cause why an order should not be entered finding defendants in contempt of for violating the stipulation entered October 3, 2007 restraining defendants' assets. At oral argument on May 4, 2009, plaintiff argued that defendants should be held in civil contempt based upon their violation of the stipulation. Judge Sifton concluded on the record that because there was no evidence that the October 3, 2007 stipulation had ever been reduced to a court order, the remedy of civil contempt was unavailable to plaintiff with regard to violation of that stipulation.

On May 5, 2008, plaintiff moved by order to show cause for a temporary restraining order restricting the transfer of defendants' assets pending a hearing on their motion for a preliminary injunction. Judge Sifton granted the temporary restraining order that same day, and issued an order directing defendants to show cause why a preliminary injunction should not be entered extending the temporary restraining order pending resolution of this matter. On May 14, Judge Sifton granted a preliminary injunction restricting ...


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